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Trusts in Mixed Jurisdictions—Aspects of the Louisiana and South African Trusts Compared

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Trusts in Mixed Jurisdictions—Aspects of the Louisiana and South African Trusts Compared THE TULANE EUROPEAN AND CIVIL LAW FORUM VOLUME 33 2018 Trusts in Mixed Jurisdictions—Aspects of the Louisiana and South African Trusts Compared François du Toit* This Article undertakes a comparative analysis of aspects of the Louisiana and South African trusts to provide a contextualized perspective on the assimilation of the common-law trust into two mixed jurisdictions with strong civilian legal traditions. The Article attends, first, to the fact that Louisiana trust law is codified whereas South African trust law is not, and it investigates some of the effects of this fundamental difference on the development of trust law in the two jurisdictions. The Article next examines whether some of the principal obstacles to the reception of the trust in Louisiana proved equally obstructive to the reception of the trust in South Africa. The Article compares, finally, some core elements of the Louisiana and South African trusts to show that divergences between Louisiana and South African private law have caused the two jurisdictions to follow, at least at times, contrasting approaches to the trust institution and the law that governs it. I. INTRODUCTION ..................................................................................... 2 II. RECEPTION AND SUBSEQUENT DEVELOPMENT: CODIFICATION VS. COMMON LAW ....................................................... 3 III. OBSTACLES TO THE RECEPTION OF THE TRUST IN LOUISIANA AND HOW THE SOUTH AFRICAN LEGAL POSITION COMPARES ........... 9 A. Duality of Ownership ......................................................... 10 1. Solving the Problem ......................................................... 10 2. Who Owns the Trust Property? ....................................... 14 * © 2018 François du Toit. Senior Professor of Law, University of the Western Cape, South Africa. I conducted the research for this Article during a sabbatical period spent at the Center of Civil Law Studies (CCLS) at the Paul M. Hebert Law Center, Louisiana State University (LSU) with the financial support of the South African National Research Foundation (NRF). The opinions, findings, and conclusions expressed in this Article are my own and, therefore, the NRF does not accept any liability in regard thereto. I am grateful to Prof. Olivier Moréteau, Director of the CCLS and my most gracious host during my time at LSU, for his support and encouragement of this research project. I also thank Prof. Marius de Waal (Stellenbosch University) and Prof. Ronald Scalise (Tulane University) for their respective reviews, as well as their invaluable recommendations for the improvement, of an earlier draft of this Article. 1 2 TULANE EUROPEAN & CIVIL LAW FORUM [Vol. 33 B. The Prohibition of Substitutions and Fidei Commissa ........................................................................... 19 C. Forced Heirship .................................................................. 24 IV. OTHER UNIQUE FEATURES OF THE LOUISIANA TRUST AND HOW THE SOUTH AFRICAN LEGAL POSITION COMPARES ................. 27 A. The Limitation of a Trust’s Duration ................................. 27 B. Trust Indestructibility ......................................................... 30 C. Beneficiaries Must Be Designated at a Trust’s Inception ............................................................................. 32 D. Powers of Appointment ...................................................... 35 V. CONCLUDING REMARKS .................................................................... 38 I. INTRODUCTION Louisiana and South Africa are both mixed jurisdictions—civilian legal systems that bear the indelible imprint of the common law.1 Both jurisdictions have received the common-law trust into their respective civilian legal methodologies. The reception of the trust and the development of trust law in Louisiana and South Africa have been characterized by legal adaptation. Zekoll observes, for example, that the trust was not received in Louisiana through an “uncritical importation of common law ideas.”2 The trust was, instead, adopted and customized in order not to compromise central values of Louisiana’s civil-law system.3 Zimmermann and Visser observe in a similar vein that the common-law trust managed to infiltrate South Africa’s civilian “citadel” but that it “had to adapt to the new environment.”4 De Waal asserts, therefore, that the trust that first appeared in South Africa was the English trust, but the trust that eventually emerged was something quite different—in South Africa there was “a reception but subsequent transformation of the English trust.”5 The reception and adaptation of the common-law trust in Louisiana and South Africa followed different paths. Consequently, and also by 1. The hybridism that characterizes the Louisiana and South African jurisdictions is so well-established that, I trust, my asserting it here is not contentious. Nevertheless, see LOUISIANA: MICROCOSM OF A MIXED JURISDICTION (Vernon Valentine Palmer ed., 1999) regarding the former and SOUTHERN CROSS—CIVIL LAW AND COMMON LAW IN SOUTH AFRICA (Reinhard Zimmermann & Daniel Visser eds., 1996) regarding the latter. 2. Joachim Zekoll, The Louisiana Private-Law System: The Best of Both Worlds, 10 TUL. EUR. & CIV. L.F. 1, 25 (1995). 3. Id. 4. SOUTHERN CROSS, supra note 1, at 28. 5. M.J. de Waal, In Search of a Model for the Introduction of the Trust into a Civilian Context, 12 STELL. L. REV. 63, 76 (2001). 2018] TRUSTS IN MIXED JURISDICTIONS 3 reason of some similarities but also distinct contrasts between the Louisiana and South African legal systems, the trusts of these two jurisdictions correspond in some respects but differ in others. In both jurisdictions the trust has retained elements of the DNA of its English forebear, but distinctive and, at times, divergent legislative and judicial engagement with the trust in the two jurisdictions has loosened the ancestral bond between the Louisiana and South African trusts: they are, in a sense, cousins rather than siblings. This Article examines aspects of the Louisiana and South African trusts to provide a contextualized perspective on the assimilation of the common-law trust into mixed jurisdictions with strong civilian legal traditions. The Article commences with an investigation into one of the fundamental differences between Louisiana’s and South Africa’s private law, namely the codification of the former as opposed to the un-codified state of the latter. This difference has had a significant impact on the manner in which the two legal systems received and adapted the common-law trust, and the Article comments on the various methodologies followed in this regard. The Article next examines some of the principal obstacles to the trust’s reception in Louisiana. These obstacles are rooted in Louisiana’s civil-law system and they appear, at least at first glance, to militate against the trust’s reception in Louisiana. The Article shows how these obstacles were overcome and inquires whether similar constraints hampered the trust’s reception in South Africa. The Article concludes with a look at some of the Louisiana trust’s unique features—features that underscore its adaptation to a civilian context—and investigates whether or not the South African trust shares these features with its counterpart from Louisiana. II. RECEPTION AND SUBSEQUENT DEVELOPMENT: CODIFICATION VS. COMMON LAW Numerous legal scholars have noted Louisiana’s initial resistance to the trust. This resistance rested formally on the prohibition of substitutions and fidei commissa contained in article 40 of the Digest of 1808 as well as in article 1507 of the Louisiana Civil Code of 1825 and subsequently in article 1520 of the Louisiana Civil Code of 1870.6 Some scholars opine, however, that the real reason behind Louisiana’s earlier aversion to the trust lies in what Wisdom calls “the doctrinal difficulty of 6. See, e.g., Kathryn Venturatos Lorio, Louisiana Trusts: The Experience of a Civil Law Jurisdiction with the Trust, 42 LA. L. REV. 1721, 1726 (1982); see also infra Section III.B (regarding the prohibition of substitutions and fidei commissa, and its impact on the reception of the trust in Louisiana). 4 TULANE EUROPEAN & CIVIL LAW FORUM [Vol. 33 the civilian mind conceiving of a tenure of property based on dual ownership or admitting into the civil law such an alien institution.”7 “Dual ownership” refers, of course, to the English-law conception of a division between a legal estate and an equitable estate—the former vesting, in the trust-law context, in the trustee (as the legal owner of the trust corpus) and the latter in the trust beneficiary (as the equitable owner of the trust corpus). This notion that different forms of ownership are divisible between different owners (or, to put it differently, that legal title is severable from equitable title) is at odds with the civil law’s adherence to singular (or unitary) ownership—the civil law conceives of ownership as absolute, autonomous, and indivisible and prescribes that a person either has full ownership (or complete title) or he or she does not.8 This conception of singular ownership appeared in Justinian’s Corpus Juris Civilis and was incorporated into the French Code Civil, from where it found its way into the Louisiana Digest of 1808 and the subsequent Civil Codes of 1825 and 1870.9 Louisiana’s civilian heritage, rooted deeply in the French and Spanish traditions, and in particular Louisiana’s Civil Codes stemming from the Code Civil10 make it unique among American jurisdictions—
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